Rubi, Individually, and as next friend of E. C., a minor v. MTD Products, Inc d/b/a Cub Cadet

Filing 86

MEMORANDUM OPINION granting 35 MOTION for Judgment on the Pleadings as to Third Party Petition Judgment, granting 45 MOTION for Summary Judgment , granting 58 Supplemental MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARIA ROSANA RUBI,
Individually and as Next
Friend of E.C., a Minor,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
MTD PRODUCTS, INC.,
Defendant.

December 02, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-1831

MEMORANDUM OPINION
Pending before the court1 are Maria Rosana Rubi’s (“Rubi”)
Motion for Judgment on the Pleadings (Doc. 35), Nicolas Medina,
individually, (“Nicolas Medina”) and doing business as (“dba”)
Medina

Tree

Services’

(“Medina

Tree

Services”)

(collectively

“Medina”) Motion for Summary Judgment (Doc. 45), and Medina’s
Supplemental Motion for Summary Judgment (Doc. 58).

The court has

considered the motions, the responses, the replies, all other
relevant filings, and the applicable law.

For the reasons set

forth below, the court GRANTS all three motions and DESIGNATES Rubi
a responsible third party pursuant to Chapter 33.

Additionally,

the jury may consider Medina’s conduct in the apportionment of
fault.

The court OVERRULES MTD’s objections to Medina’s evidence

of settlement.

1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 85, Ord. Dated
November 22, 2016.

I.

Case Background

Rubi, individually and as next friend of E.C., (“Plaintiff”)
filed this action against a lawn mower manufacturer, MTD Products,
Inc., (“MTD”), alleging that E.C. sustained injuries as a result of
MTD’s negligence in the design, manufacturing, marketing, and sale
of the Cub Cadet commercial lawn mower.2
On July 19, 2014, E.C., the eight-year-old child of Rubi, was
injured when her right hand entered an opening that exposed moving
parts of the lawn mower and “was severely crushed and sliced to
such an extent that the only option for her doctors was to amputate
her right hand at the wrist.”3
E.C.’s injury gave rise to two state lawsuits filed by Rubi,
individually and as next friend of E.C.

The first was filed on

September 30, 2014, against Medina and Ruffina Medina (“Medina
Lawsuit”).4

The second was originally filed on May 29, 2015, in

state court and now is pending before this court (“MTD Lawsuit”).5
A.

Medina Lawsuit
The petition in the Medina Lawsuit alleged that Nicolas Medina

and Ruffina Medina were negligent in failing to protect E.C. from

2

See Doc. 3-1, Ex. A to Am. Notice of Removal, Pl.’s Orig. Pet.

3

Id. pp. 2-3, 8.

4
See Doc. 17-1, Ex. 1 to MTD’s Agreed Mot. for Leave to File 3rd-Party
Pleading, Orig. Pet. in Rubi v. Medina, No. 2014-56631 (151st Dist. Ct. of Harris
Cty.).
5

See Doc. 3-1, Ex. A to Am. Notice of Removal, Pl.’s Orig. Pet.

2

“unreasonably dangerous conditions or to warn of their existence.”6
While on Nicolas and Ruffina Medina’s property as an invitee, the
petition alleged, E.C. was injured by a lawn mower owned and
operated by Medina.7
The lawsuit sought damages to compensate E.C. for severe and
permanent physical impairment, physical pain, mental anguish,
disfigurement, loss of enjoyment of life, medical expenses, partial
or permanent disability, and expenses for rehabilitative care,
therapy,

and

prosthetics.8

In

addition

to

these

expenses,

Plaintiff sought on Rubi’s behalf the cost of medical care and the
loss of E.C.’s earning potential.9
After two amendments, the live pleading no longer named
Ruffina Medina as a defendant and included additional allegations
regarding Medina’s culpability.10 Specifically, the pleading added
the allegations that, at the time of E.C.’s injury, Nicolas Medina
“was

operating

the

commercial

lawn

mower

in

the

course

of

maintaining the business premises” of Medina Tree Services and that

6

Doc. 17-1, Ex. 1 to MTD’s Agreed Mot. for Leave to File 3rd-Party
Pleading, Orig. Pet. in Rubi v. Medina, No. 2014-56631 (151st Dist. Ct. of Harris
Cty.) p. 3.
7

Id.

8

See id. pp. 6-7.

9

See id. pp. 7-8.

10

Compare Doc. 17-1, Ex. 1 to MTD’s Agreed Mot. for Leave to File 3rdParty Pleading, Orig. Pet. in Rubi v. Medina, No. 2014-56631 (151st Dist. Ct. of
Harris Cty.) with Doc. 17-3, Ex. 3 to MTD’s Agreed Mot. for Leave to File 3rdParty Pleading, 2d Am. Pet. in Rubi v. Medina, No. 2014-56631 (151st Dist. Ct. of
Harris Cty.)

3

Nicolas Medina created an attractive nuisance by leaving the lawn
mower running and unattended.11

Further, the pleading alleged,

Nicolas Medina selected a defectively designed lawn mower that
lacked a sufficient guard on dangerous moving parts for use in his
business and disabled an engine-kill feature to allow for more
efficient

performance

of

the

Medina

Tree

Services’

business

endeavors.12 The pleading stated specifically that Nicolas Medina’s
actions were “directly related” to the Medina Tree Services’
business and were the proximate causes of E.C.’s injury.13
The parties to the Medina Lawsuit settled the action for
$775,000.14

The settlement agreement was signed by, in addition to

Plaintiff’s counsel, an attorney who signed for Nicolas Medina in
his individual capacity and an attorney who signed for Nicolas
Medina dba Medina Tree Services.15

A related release of claims

“RELEASE[D], ACQUIT[TED], AND FOREVER DISCHARGE[D]” all claims

11

Doc. 17-3, Ex. 3 to MTD’s Agreed Mot. for Leave to File 3rd-Party
Pleading, 2 Am. Pet. in Rubi v. Medina, No. 2014-56631 (151st Dist. Ct. of Harris
Cty.) pp. 4, 6. The amended petition omitted a prior statement to the effect
that nothing E.C. had done or failed to do caused or contributed to her injuries.
Compare id. p. 4 with Doc. 17-1, Ex. 1 to MTD’s Agreed Mot. for Leave to File
3rd-Party Pleading, Orig. Pet. in Rubi v. Medina, No. 2014-56631 (151st Dist. Ct.
of Harris Cty.) p. 4 and Doc. 17-2, Ex. 2 to MTD’s Agreed Mot. for Leave to File
3rd-Party Pleading, 1st Am. Orig. Pet. in Rubi v. Medina, No. 2014-56631 (151st
Dist. Ct. of Harris Cty.) p. 5.
d

12

See id. p. 5

13

Id.

14

See Doc. 58, Ex. D to Medina’s Suppl. Mot. for Summ. J., Settlement

Agreement.
15

See id. pp. 2-3.

4

against Nicolas Medina without mentioning his dba capacity.16

On

April 13, 2015, the state court approved the settlement and
rendered judgment “in favor of Plaintiff and against Defendant.”17
The judgment, which awarded Rubi and E.C. $775,000, resolved the
case in its entirety and, although not referring to Nicolas Medina,
individually, or dba Medina Tree Services by name, indicated that
“all parties” settled.18
B.

MTD Lawsuit
On May 29, 2015, Plaintiff filed a petition in state court

against MTD.19

Plaintiff alleged that E.C.’s injuries were caused

by the Cub Cadet lawn mower, which was “unreasonably dangerous”
because it lacked “adequate guards of the power train belts and
pulleys on top of the cutting deck” and the “opening . . . exposed
moving parts to users and persons in the vicinity of the mower
while in operation.”20

Plaintiff accused MTD of negligence in

designing the Cub Cadet, in failing to warn users of the danger,
and in manufacturing the lawn mower.21

Plaintiff also brought a

separate cause of action for product liability in designing and
16

See Doc. 58, Ex. E to Medina’s Suppl. Mot. for Summ. J., Release of

All Cls.
17

151

st

See Doc. 58, Ex. B to Medina’s Suppl. Mot. for Summ. J., J. of the
Dist. Ct. of Harris Cty. Dated Apr. 13, 2015 p. 3.
18

See id. pp. 1-4.

19

See Doc. 3-1, Ex. A to Am. Notice of Removal, Pl.’s Orig. Pet.

20

Id. p. 3.

21

See id. pp. 3-4.

5

manufacturing the mower.22

Plaintiff sought a list of identical

damages as in the Medina Lawsuit.23
On June 26, 2015, MTD removed the action to this court and, on
July 2, 2015, filed an answer in which it raised twenty-two
defenses.24

On January 18, 2016, Plaintiff amended, with MTD’s

written consent, in order to add allegations regarding MTD’s
culpability.25 MTD filed its answer to the amended complaint on the
same day, adding eleven more affirmative defenses, including five
that related specifically to Nicolas Medina, Medina Tree Services,
and the Medina Lawsuit.26
On February 25, 2016, MTD filed an “agreed” motion for leave
to file a third-party “petition” against Plaintiff, Nicolas Medina,
and Medina Tree Services.27

MTD argued that Plaintiff was “trying

to change [the] theory of the case” and was pursuing “piecemeal
litigation” and “duplicative recovery” and that MTD was “prejudiced

22

See id. pp. 3-4.

23
Compare id. pp. 6-8 with Doc. 17-1, Ex. 1 to MTD’s Agreed Mot. for
Leave to File 3rd-Party Pleading, Orig. Pet. in Rubi v. Medina, No. 2014-56631
(151st Dist. Ct. of Harris Cty.) pp. 6-8.
24

See Doc. 1, Notice of Removal; Doc. 4, Ans.

25

See Doc. 15, Pl.’s 1st Am. Compl.

26

See Doc. 16, MTD’s Ans. to Pl.’s 1st Am. Compl. pp. 7-9 (citing Rubi
v. Medina, No. 2014-56631 (151st Dist. Ct. of Harris Cty.)).
27

See Doc. 17, MTD’s Agreed Mot. for Leave to File 3rd-Party Pleading
Although designated an “agreed” motion, it did not include a certificate of
conference or any statement to the effect that the named parties agreed to being
Moreover, Rubi and Medina filed
added as third-party defendants.
See id.
motions to dismiss the third-party “petition,” which hardly suggests that they
agreed to its filing.

6

in its ability to protect its interests with all parties present”
because of its exclusion from the Medina Lawsuit.28

MTD claimed

that the evidence “support[ed] the conclusion that [Nicolas] Medina
disconnected the mower’s safety device, that [Nicolas] Medina
and/or Plaintiff[] were inappropriately playing with the mower,
were negligent, and were the sole proximate causes of E.C.’s
alleged damages.”29
The motion requested that the court allow MTD “to file a third
party petition [sic],” citing only Chapter 33 of the Texas Civil
Practice and Remedies Code (“Chapter 33”) as authority.30 The court
granted MTD’s “agreed” motion the day after its filing, and MTD’s
third-party “petition” was docketed on February 29, 2016.31

The

pleading named Plaintiff and Medina as third-party defendants.32
MTD alleged that Rubi and her daughter E.C. were neighbors of
Nicolas Medina and E.C. was an invitee on Nicolas Medina’s property
when she was injured.33 MTD alleged two alternative theories of the
events that caused E.C.’s injury: (1) Nicolas Medina gave E.C. a
joyride on the mower deck in Nicolas Medina’s backyard, and E.C.

28

Id. pp. 2, 3, 7.

29

Id. p. 3.

30

Id. pp. 14-18.

31

See Doc. 18, Ord. Dated Feb. 26, 2016; Doc. 19, MTD’s 3rd-Party

Pleading.
32

See Doc. 19, MTD’s 3rd-Party Pleading pp. 1-2.

33

See id. p. 3.

7

lost her balance, fell, and caught her hand in the mower when
Nicolas Medina turned the mower and/or operated the mower at
excessive speed; or (2) Nicolas Medina disconnected the mower’s
safety feature, left the mower running unattended, and E.C. began
playing on the mower and put her hand inside its running parts.34
MTD alleged that Nicolas Medina was negligent in permitting
E.C. to ride the mower as a passenger, in making sharp turns and
driving at excessive speed, in disconnecting the mower’s safety
feature and leaving it running, in creating an attractive nuisance,
in failing to warn E.C. of the danger of the running mower, and in
failing

to

property.35

supervise

E.C.

while

visiting

Nicolas

Medina’s

MTD also alleged that Rubi was negligent in failing to

supervise E.C., alleging that Rubi “lost track of E.C.” when she
went to visit Nicolas Medina’s property and that E.C. was negligent
either in playing on the mower and sticking her hand in its moving
parts or in taking a joyride on the mower with Nicolas Medina.36
As

to

all

three,

MTD

asserted

that

it

was

entitled

to

indemnification because its liability, if any, arose out of “acts
or omissions which were merely passive and secondary and result[ed]
solely from the negligent conduct” of the third-party defendants,
and that it was entitled to contribution because its liability “was

34

See id. pp. 3-5.

35

See id. pp. 6-21.

36

See id. pp. 21-24.

8

at most a joint or concurring cause of damages allegedly suffered
by Plaintiffs.”37

MTD alleged, in the alternative, that Plaintiff

was not entitled to recover from MTD because the negligence of
Medina, Rubi, or E.C. was the “supervening, intervening, and
efficient cause of the damages.”38
MTD requested that the trier of fact determine the percentage
of responsibility with respect to each person, deny Plaintiff any
recovery if Plaintiff bore more that fifty percent liability,
reduce the amount of damages to be recovered by Plaintiff by a
percentage equal to Plaintiff’s and Medina’s combined percentage of
responsibility, reduce the amount of damages to be recovered by
Plaintiff by the amounts of all settlements.39

In addition to

statutory relief, MTD requested contribution and indemnity from
Plaintiff and Medina pursuant to common law contribution and
indemnity.40
Rubi waived service on March 22, 2016, and MTD served the
pleading on Medina on March 23, 2016.41

On April 8, 2016, Medina

answered the third-party “petition” and filed a motion to dismiss
that the court later mooted after Medina filed a motion for summary

37

Id. pp. 6, 7.

38

Id. p. 7.

39

See id. pp. 24-25.

40

See id. p. 25.

41

See Doc. 26, Ret. of Serv.; Doc. 27, Waiver of Serv.

9

judgment on similar grounds.42

On May 20, 2016, Rubi answered the

third-party pleading and filed a motion for judgment on the
pleadings.43
judgment.44

On June 16, 2016, Medina filed a motion for summary
On July 22, 2016, Medina filed a supplemental motion

for summary judgment.45

On August 2, 2016, Rubi filed an amended

answer to MTD’s third-party pleading with leave of court to add the
affirmative defense of parental immunity.46
II.

Applicable Law

Chapter 33, which is generally recognized as applicable in
diversity actions, applies to any tort “in which a defendant,
settling person, or responsible third party is found responsible
for a percentage of the harm for which relief is sought.”
Civ.

Prac.

&

Rem.

Code

§

33.002(1);

see

also

Sting

Tex.
Soccer

Operations Grp. LP v. JPMorgan Chase Bank NA, Civil Action No.
4:15-CV-00127,

2016

WL

5234918,

at

*1

(E.D.

Tex.

Sept.

22,

2016)(slip copy)(listing cases and stating that most district
courts apply Chapter 33 to diversity actions); EH Nat’l Bank v.
Tran, Civil Action No. 3:16-cv-00083-M, 2016 WL 4138634, at *2

42
See Doc. 28, Medina’s Mot. to Dismiss; Doc. 29, Medina’s Ans.; Doc.
52, Min. Entry Ord. Dated July 7, 2016.
43

See Doc. 34, Rubi’s Ans.; Doc. 35, Rubi’s Mot. for J. on the

Pleadings.
44

See Doc. 45, Medina’s Mot. for Summ. J.

45

See Doc. 58, Medina’s Suppl. Mot. for Summ. J.

46

See Doc. 65, Rubi’s 1st Am. Ans.

10

(N.D. Tex. Aug. 4, 2016)(slip copy)(quoting Hernandez v. Bumbo
(Pty.) Ltd., No. 3:12-cv-1213-M, 2014 WL 924238, at *1 (N.D. Tex.
Mar. 10, 2014)(unpublished), as stating that Chapter 33 is state
substantive law that applies to diversity actions).
A “responsible third party” is:
[A]ny person who is alleged to have caused or contributed
to causing in any way the harm for which recovery of
damages is sought, whether by negligent act or omission,
by any defective or unreasonably dangerous product, by
other conduct or activity that violates an applicable
legal standard, or by any combination of these.
Tex. Civ. Prac. & Rem. Code § 33.011(6).

A “settling person” is “a

person who has, at any time, paid or promised to pay money or
anything of monetary value to a claimant in consideration of
potential liability with respect to the personal injury, property
damage, death, or other harm for which recovery of damages is
sought.”

Tex. Civ. Prac. & Rem. Code § 33.011(5).

Neither the designation of a third party as responsible nor
the finding of fault against that person imposes liability on that
person.

Tex. Civ. Prac. & Rem. Code § 33.004(i).

Thus, “[a]

defendant may liberally designate responsible third parties[,] . .
. even parties who are not subject to the court’s jurisdiction or
who are immune from liability to the claimant.”

Brewer v. Suzuki

Motor of Am., Inc., CIVIL ACTION NO. 4:15-CV-00197, 2016 WL
4159754, at *3 (S.D. Tex. Aug. 3, 2016)(slip copy)(quoting Fisher
v. Halliburton, 667 F.3d 602, 621-22 (5th Cir. 2012); see also In
re Elevator Servs. Co., 178 S.W.3d 53, 58 n.5 (Tex. App.—Houston
11

[1st Dist.] 2005, no pet.).
In order to designate a person as a responsible third party,
a defendant needs to timely file “a motion for leave to designate
that person as a responsible third party.”
Code § 33.004(a).

Tex. Civ. Prac. & Rem.

The motion for leave is to be granted unless

another party objects within fifteen days of being served the
motion

and

establishes

that

the

defendant

failed

to

“plead

sufficient facts concerning the alleged responsibility of the
person” designated.

Tex. Civ. Prac. & Rem. Code § 33.004(f),(g)

(basing the sufficiency determination on the liberal pleading
standards in the Texas Rules of Civil Procedure); see also Tex. R.
Civ. P. 47(a) (requiring “a short statement of the cause of action
sufficient to give fair notice of the claim involved”).

If the

motion is granted, the person named in the motion is so designated
without further action by the court or any party.
& Rem. Code § 33.004(h).

Tex. Civ. Prac.

The defendant then bears the burden at

trial to produce evidence that the designated person is responsible
for some portion of the plaintiff’s damages.

See Tex. Civ. Prac.

& Rem. Code § 33.003(b).
The trier of fact is tasked with deciding, if sufficient
evidence is presented on the conduct of each designated party, the
percentage

of

responsibility

that

falls

to

each

claimant,

defendant, settling person, and/or designated third party.
Civ. Prac. & Rem. Code § 33.003.

Tex.

If a plaintiff is more than fifty

12

percent responsible for the injury suffered, the plaintiff may not
recover any damages.

Tex. Civ. Prac. & Rem. Code § 33.001.
III.

Analysis

MTD filed a motion for leave to file a third-party “petition”
pursuant to Chapter 33.

Neither the motion nor MTD’s third-party

pleading mentioned Federal Rule of Civil Procedure 14 concerning
federal third-party practice, which is the procedure of impleader.
More importantly, MTD did not seek to transfer its liability to a
nonparty who could be secondarily or derivatively liable for all or
part of Plaintiff’s claims against MTD.47

Rather, MTD sought

comparative responsibility, contribution, and indemnity against
Plaintiff and Medina, alleging that they were liable, at least in
part, for the harm to Plaintiff.48
MTD

conflated

federal

third-party

proportionate-responsibility provisions.

practice

and

state

MTD filed a third-party

“petition” naming Plaintiff and Medina as third-party defendants
but pled no allegations supporting impleader.

As is evident both

from MTD’s reliance on Chapter 33 as legal authority and from its

47
See Doc. 19, MTD’s 3rd-Party Pleading pp. 14-18.
MTD alleged
negligence as the cause of action against each of the named third parties;
however, MTD has no standing to assert negligence claims against these parties.
F.3d
, 2016 WL 6915527, at *5 (5th
See Campbell v. Lamar Inst. of Tech.,
Cir. Nov. 23, 2016)(stating that, for a plaintiff to have constitutional
standing, it must show a concrete, particularized, imminent injury in fact, a
causal connection to the defendant’s actions, and the likelihood that a favorable
decision would redress the injury). MTD did not plead that it suffered any
cognizable injury that is fairly traceable to the third-party defendants’
actions, only that E.C.’s injuries were caused by the third-party defendants’
actions. See Doc. 19, MTD’s 3rd-Party Pleading
48

See Doc. 19, MTD’s 3rd-Party Pleading pp. 14-18.

13

request

that

its

own

liability,

if

any,

be

reduced

by

the

proportionate responsibility of the named third parties, MTD’s
actual intent was to designate the named third-party defendants as
responsible for all or part of Plaintiff’s harm. The proper method
for accomplishing that goal is to file a motion to designate
responsible third parties, not to file a third-party “petition.”
See Tex. Civ. Prac. & Rem. Code § 33.004(a).

Had MTD filed the

proper motion, the granting of the motion would have completed the
designation without need for the filing of a third-party pleading
by MTD or the filing of answers by the designated parties.
In order to clarify this procedural snafu and address the
concerns of Rubi and Medina, the court first grants the dispositive
motions as to the third-party pleading and deems it in connection
with MTD’s motion for leave to be what they in fact collectively
constituted—a motion to designate responsible third parties.

The

court also deems the pending dispositive motions to be timely filed
objections.49
A.

Rubi’s Motion for Judgment on the Pleadings
In Rubi’s pending motion, she objects on the basis of parental

immunity, arguing that she is immune from E.C.’s cause of action
because, to the extent E.C.’s injuries arose out of Rubi’s actions,

49

Medina filed the motion to dismiss sixteen days after receiving
service of the third-party pleading, and Rubi filed her motion for judgment on
the pleadings fifty-nine days after waiving service. Both were timely filings
under the Federal Rules of Civil Procedure in response to a third-party
complaint. However, the objection period for a motion to designate third parties
is only fifteen days.

14

those actions fell within the protected parental activity of
supervision.

According to Rubi, MTD cannot bring an action that

E.C. could not pursuant to the doctrine of parental immunity.

MTD

argued in response that Rubi’s actions fell within one of the
exceptions to parental immunity.
Plaintiff fits within the statutory definition of “responsible
third party” because MTD alleged that Rubi and E.C. negligently
caused or contributed to causing E.C.’s injury for which Plaintiff
seeks damages.

Specifically, MTD alleged that Rubi was negligent

in failing to supervise E.C. and that E.C. was negligent either in
playing on a mower and sticking her hand in its moving parts or in
taking

a

joyride

allegations
standard

of

are
the

on

the

sufficient
Texas

mower
to

Rules

with
meet

of

Nicolas
the

Civil

Medina.

fair-notice

Procedure

in

These
pleading

order

to

designate Rubi a responsible third party.
Rubi’s claim of parental immunity does not prevent her from
being designated as a responsible third party.

Chapter 33, which

does not impose liability, applies to Rubi even though she may have
immunity to a suit brought by E.C.

See Tex. Civ. Prac. & Rem. Code

§ 33.004(i); Fisher, 667 F.3d at 621-22,

Brewer, 2016 WL 4159754,

at *3.
Accordingly, Rubi failed to meet her burden imposed by Chapter
33 to strike her designation as a responsible third party because
MTD successfully pled facts capable of showing Rubi’s alleged

15

responsibility.

See Tex. Civ. Prac. & Rem. Code § 33.004(g)(1).

Rubi is designated a responsible third party.

In order for the

jury to be presented with the task of apportioning fault to Rubi,
MTD must present at trial sufficient evidence to raise a genuine
issue of fact regarding her responsibility for E.C.’s injury.

See

Tex. Civ. Prac. & Rem. Code § 33.003(b).
B.

Medina’s Motion for Summary Judgment
In Medina’s motion, the objection is based on Medina’s status

as a settling person who cannot be liable in any capacity to MTD.
MTD filed a response that raised multiple issues.
MTD argues that the settlement documents and the judgment in
the Medina case were unclear whether the claims were settled
against Nicolas Medina in both of his capacities, raising a fact
question whether Nicolas Medina dba Medina Tree Services qualifies
as a “settling person” under Chapter 33.
Although the release and court order do not distinguish
between Nicolas Medina, individually, and dba Medina Tree Services,
Texas law provides that there is no distinction.
Serv.,

Inc.

v.

Amoco

Prod.

Co.,

662

S.W.2d

See Ideal Lease
951,

952

(Tex.

1983)(finding that, because the facts of the case showed that the
sole proprietorship was an independent contractor so was the
proprietor); In re Gerstner, NO. 02-15-00315-CV, 2015 WL 6444797,
at *1 (Tex. App.—Fort Worth Oct. 23, 2015, not pet.)(unpublished)
(citing Ideal Lease Serv., Inc., 662 S.W.2d at 952)(“A sole

16

proprietorship is, in law and in fact, one and the same as the
person who is the sole proprietor.”); Garcia v. Shell Oil Co., 355
S.W.3d 768, 778 (Tex. App.—Houston [1st Dist.] Sept. 8, 2011, no
pet.)(citing Ideal Lease Serv., Inc., 662 S.W.2d at 952)(“A sole
proprietorship does not have a separate legal existence distinct
from the operator of the business.”)

Accordingly, no factual or

legal question remains that Nicolas Medina settled the case for
both himself and his proprietorship.

Medina has been released and

should not be a party to this case.
Medina thus fits within the statutory definition of “settling
person” due to the $775,000 given Plaintiff in consideration of
Medina’s potential liability for E.C.’s injury.
Prac. & Rem. Code § 33.011(5).

See Tex. Civ.

Medina’s actions may be considered

by the jury in its assessment of responsibility for E.C.’s harm
without the need for Medina to participate in this case.50

Cf.

Fisher, 667 F.3d at 621-22 (stating that even parties not subject
to the court’s jurisdiction may be designated responsible third
parties).

To be clear, the jury’s consideration will be what

percentage of responsibility is attributable to Medina without
reference to the amount of his settlement.

That is, if Medina’s

percentage of the damages awarded by the jury were to exceed the
dollar amount of $775,000, Medina would not be liable for the

50

In prior filings, Medina agreed that MTD could submit Medina’s
conduct to the jury for consideration pursuant to Chapter 33. See Doc. 28,
Medina’s Motion to Dismiss p. 2; Doc. 29, Medina’s Ans. p. 2.

17

dollar-amount difference, but neither would MTD be liable for that
difference or for any percentage of responsibility greater than
that assessed against MTD by the jury.
In

its

response,

MTD

also

argued

its

entitlement

to

contribution and indemnity based on several theories not previously
raised.

In the third-party petition, MTD requested contribution

and indemnity under Chapter 32 of the Texas Civil Practice and
Remedies Code (“Chapter 32”), Chapter 33, “and any other applicable
statutes or common law.”51

Chapter 32 allows a person against whom

a judgment was rendered, after payment of the judgment, to recover
from each co-defendant against whom judgment was also rendered.
Tex. Civ. Pract. & Rem. Code § 32.002.
applicable in this case.

Chapter 32 is not

Other than the rights of comparative

responsibility that Chapter 33 bestows on MTD, MTD fails to show
its entitlement to contribution or indemnity.
MTD’s newly raised alternative theories of contribution and
indemnity are equally unavailing.
applicable

statutory,

common-law,

MTD has failed to cite any
or

contractual

contribution or indemnity in this action.

basis

for

Under none of MTD’s

theories could Medina be directly or indirectly liable to MTD for
damages

to

E.C.

Accordingly,

MTD

is

left

with

a

claim

of

comparative responsibility and may present evidence of Medina’s
conduct in an effort to convince the jury that MTD is only

51

Doc. 19, MTD’s 3rd-Party Pleading p. 25.

18

partially at fault, if at all.

Cf. Tex. Civ. Prac. & Rem. Code §

33.003 (stating that the jury may apportion responsibility among
each plaintiff, defendant, settling person, and/or designated third
party upon sufficient evidence as to each).
IV.

Conclusion

Based on the foregoing, the court GRANTS Rubi’s motion to
dismiss and Medina’s motion and supplemental motion for summary
judgment.

The court DESIGNATES Rubi a responsible third party.

The jury may also consider Medina’s conduct in the apportionment of
fault.
SIGNED in Houston, Texas, this 2nd day of December, 2016.

______________________________
U.S. MAGISTRATE JUDGE

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